CITATION: Frank v. Bolton Medical Imaging Centres, 2017 ONSC 6934

COURT FILE NO.: CV-11-430647

DATE: 20171120

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Catharina Frank aka Catherine Frank and Ivan Frank

Plaintiff

– and –

Bolton Medical Imaging Centres and K. Schneider

Defendants

John Freeman, for the Plaintiff

Antonella F. Albano and Joseph Lin, for the Defendant Bolton Medical Imaging Centres

Eli Mogil and Emily MacKinnon, for the Defendant K. Schneider

HEARD: September 25, 26, 27, 28, and 29, 2017

REASONS FOR JUDGMENT

D.A. Wilson, J.

[1] This is a claim for damages arising from the alleged failure to diagnose breast cancer in the Plaintiff Catharina Frank (“Catharina”) in 2008. General damages and the claim of Ivan Frank pursuant to the Family Law Act, R.S.O. 1990, c. F.3., were agreed upon in advance of the trial. It was also agreed that any finding of negligence arising from the 2009 imaging was not causative of any damages. The trial proceeded on the issue of liability of the defendants. A Joint Book of Documents (“JBD”) containing the various medical records was filed as an exhibit at the trial.

Background

[2] A chronology of important events was filed as Exhibit 5 at the trial. The Plaintiff was referred by her family doctor for a routine screening mammogram in August of 2008. The mammogram was conducted at the Bolton Medical Imaging Centre (“Bolton”) on August 28, 2008 and it was reported on by the defendant Dr. Schneider on August 25, 2008. An ultrasound was done at Bolton on August 30, 2008 and a coned compression mammogram was done September 2, 2008. Both of these studies were reported on by Dr. Schneider.

[3] In July, 2009, Catharina was referred for another ultrasound and mammogram by her family physician because she felt a lump in her breast. Those tests were done at Bolton on July 19, 2009 and were reported on by Dr. Schneider shortly thereafter.

[4] The Plaintiff’s family doctor sent her to Trillium Health Sciences Centre for another breast ultrasound, which was conducted August 14, 2009 and revealed the presence of a lesion in the right breast. Further testing confirmed cancer and on September 25, 2009, the Plaintiff underwent a mastectomy on the right side.

The Law

[5] In a medical negligence case, the Plaintiff must prove on a balance of probabilities that the Defendant physician fell below the standard of care: see Bafaro v. Dowd, [2008] O.J. No. 3474 (S.C.). The law requires that a physician must exercise the degree of skill and care expected of a normal, prudent physician practicing in similar circumstances. In Crits v. Sylvester, 1956 CanLII 34 (ON CA), 1956 O.R. 132 (C.A.), the law concerning the standard of care was clearly set out and remains good law:

Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.

[6] The standard imposed on a doctor is not one of perfection. The Supreme Court of Canada in Ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, at para. 33, stated:

It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist…the doctor’s behaviour must be assessed in light of the conduct of other ordinary specialist, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in his field.

[7] The law is clear that the actions of a physician must be assessed in the context of his or her knowledge at the time of treatment; a physician cannot be judged retrospectively: see LaPointe v. Hopital le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351. It would be most unfair to judge conduct or decision making with the benefit of hindsight, knowing what the outcome was. It is important to note that the mere fact that a doctor was incorrect or made an error in judgment does not amount to a finding of negligence: see Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804.

[8] It is particularly important in this case to note that a poor or unexpected outcome does not constitute negligence. The Supreme Court of Canada dealt with this specific issue in St. Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, stating at para. 53:

To ask…whether a specific positive act or an instance of omission constitutes a fault is to collapse the inquiry and may confuse the issue. What must be asked is whether that act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the same circumstances. The erroneous approach runs the risk of focusing on the result rather than on the means. Professionals have an obligation of means, not an obligation of result.

Evidence

Catharina Frank

[9] Catharina Frank was born in 1946 and at the time of the events giving rise to this claim she was 62 years of age. In 2008, she was residing in Bolton with her husband, Ivan Frank (“Ivan”) and Dr. Sarah Rizk had been her family doctor for 2 or 3 years.

[10] Her memory was not clear but she thought she attended for annual mammograms and ultrasounds of her breasts at Mt. Sinai hospital. She testified that her mother had a breast cancer diagnosis when she was in her 80’s. She recalled having breast imaging at Bolton in 2008 as part of her regular screening. The clinic was in the same building as her family doctor’s office. She saw Dr. Rizk after the tests and was told that everything was fine.

[11] In 2009, she noted some redness on her right breast so she attended upon her family doctor, who prescribed some antibiotics. After she finished the prescription medication, her breast was still red and she felt a lump so she returned to see Dr. Rizk.

[12] She was given a referral for breast imaging and she had a mammogram and an ultrasound at Bolton. A few days later, she got a call from Dr. Rizk, who advised she did not trust the tests that had been done and she was sending her for some further consultations.

[13] Catharina went to Trillium Hospital in Mississauga (“Trillium”), since she and her husband had moved there. She had another mammogram, an ultrasound of her breast and a biopsy of the lump was taken.

[14] In September, 2009, she was sent to Dr. Wen, who advised her that she had a malignant tumour in her right breast which required surgery. Catharina understood she would have a partial mastectomy of her right breast but when she woke after the surgery, she learned that her entire breast and many lymph nodes had been removed because the cancer had progressed.

[15] After her discharge from the hospital, she came under the care of an oncologist and she underwent chemotherapy and radiation.

[16] Catharina’s memory of events in 2008 and 2009 was vague which is not surprising given what she underwent during this period as well as the passage of time.

Dr. Sarah Rizk

[17] Dr. Rizk is a general practitioner who practices medicine in Bolton. She was the family doctor of Catharina for 7 or 8 years until the Plaintiff moved to Mississauga. Bolton Imaging is located in the same building as Dr. Rizk’s office so she often sent patients there for tests.

[18] Dr. Rizk noted that Catharina had a family history of breast cancer and she initially testified that she referred her for annual mammograms at Bolton. However, she could not recall if she received reports from the mammograms done prior to 2008. Later, in cross examination, she agreed that in all likelihood, she had not sent Catharina for a mammogram until 2008.

[19] Dr. Rizk filled out a requisition form for a mammogram on August 25, 2008 (JBD Tab 1). She received the report authored by Dr. Schneider (JBD Tab 3) which noted non-specific nodules in the right breast. The report indicated that because of the presence of the nodules, an ultrasound would be arranged as well as coned-compression views and a supplementary report would be sent.

[20] Dr. Rizk received the report of the breast ultrasound dated August 30, 2008 (JBD Tab 6) which indicated a repeat ultrasound should be done in 6 months. The coned compression views done September 2, 2008 (JBD Tab 9) were reported on by Dr. Schneider as negative. Dr. Rizk discussed the results of the ultrasound and the coned compression mammogram with the Plaintiff. Dr. Rizk did not send the Plaintiff for a further ultrasound in 6 months as recommended because she had other medical issues for which she was being treated.

[21] In July of 2009, the Plaintiff attended at Dr. Rizk complaining of an area in her right breast that was tender, red in colour and hot to the touch. Dr. Rizk thought it was inflammation of some sort, perhaps an abscess, so she prescribed an antibiotic medication. She filled out a requisition form for a mammogram and ultrasound (her referral form is located at Tab 10 of the JBD). Although Dr. Rizk testified that she requested these tests on an urgent basis, this is not indicated in her referral form.

[22] Dr. Rizk received the report of the mammogram and ultrasound that were done at Bolton on July 19, 2009 (JBD Tab 13). She met with Catharina and told her the results were negative. The Plaintiff said there had been no improvement in the mass in her breast. Dr. Rizk referred her for more breast imaging at a different facility, Trillium.

[23] Dr. Rizk received the report of the ultrasound which was done August 14, 2009 at Trillium (JBD Tab 15). The report noted “Focal lesion in the right breast near the 1 o’clock position, along with abnormal lymphadenopathy in the right axilla. This is unfortunately highly suspicious for primary carcinoma and a biopsy is recommended.”

[24] Dr. Rizk completed an urgent referral for a biopsy and she was sent the reports of the ultrasound and biopsy that were done September 1, 2009 at Trillium. The reports indicated the mass was “very suspicious for malignancy.” She later received the report from Dr. Wen, the surgeon at Trillium who performed the mastectomy (JBD Tab 18). The preoperative report indicated the breast cancer was significant in size. She subsequently received the operative note (JBD Tab 19) from Dr. Wen which indicated a right modified radical mastectomy was performed.

[25] Dr. Rizk saw the Plaintiff after the cancer surgery but she could not recall the last time she saw Catharina, likely it was 2010 because she moved to Mississauga.

[26] Dr. Rizk was not an impressive witness; her recollection of her encounters with Catharina was not clear and parts of her testimony were clearly inaccurate. I place little weight on her testimony.

Dr. Belinda Curpen

[27] Dr. Curpen was qualified as an expert in the field of radiology entitled to express an opinion on breast imaging. She currently works at Sunnybrook Health Sciences Center, and previously was the head of breast imaging at that hospital.

[28] Dr. Curpen was retained by the Plaintiff to provide an opinion in this lawsuit. She authored three reports: July 24, 2012; August 1, 2014; and April 19, 2016.

[29] Initially, she was asked by the solicitor for the Plaintiff to meet with him and review the mammograms done August 25, 2008 and July 19, 2009. She did so, without having any documentation or history of the Plaintiff, so that she would be unbiased and it would be a “blind” review. She confirmed that she was not provided with any prior images to review.

[30] Dr. Curpen put the films up on the view box in her office and used her magnifying glass, which makes the images twice their size. She explained this was the standard way films were reviewed at that time. She did not believe that using glasses with a magnification of twice the size would meet the standard of care.

[31] When she studied the 2008 mammogram, she saw a small cluster of micro calcifications in the right breast, which caught her eye. This finding can be the first sign of breast cancer and further investigation was required in the form of an ultrasound or possibly, magnified views. Dr. Curpen stated that the micro calcifications were indeterminate on the film and there was asymmetry of the breasts so further investigations were required.

[32] She agreed Dr. Schneider ordered coned compression views of the breast as well as ultrasound, which demonstrated that he was thinking, considering various matters and this was an exercise of reasonable clinical judgment. An ultrasound was done on August 30, 2008 with 72 pictures of the breasts, and it showed no area of concern. Dr. Curpen agreed that Dr. Schneider recommended a follow up ultrasound in 6 months and that was reasonable.

[33] In cross examination, Dr. Curpen agreed that a radiologist has to make judgment calls about what he or she sees on the imaging. Some findings are subtle and the interpretation is both an art and a science, based on the doctor’s training and experience. She acknowledged that when considering this case, she knew Mrs. Frank had gone on to develop cancer, and that was something Dr. Schneider did not know when he read her mammogram in 2008. She also agreed she had more information available to her when she reviewed the file than Dr. Schneider had when he prepared his report of the mammogram.

[34] Dr. Curpen felt Dr. Schneider needed to do more than simply order an ultrasound of the right breast, although she conceded that an ultrasound provides more clarity when there is a marker on a mammogram that might be indicative of cancer. Dr. Curpen acknowledged that a significant number of women have calcifications, and there are different types so the radiologist must interpret them to determine the nature of them; some are not a concern while others could signify cancer. She acknowledged that the pathology report found micro calcifications in the benign breast tissue while there was no mention of them in the tumor that was removed.

Dr. Minto Jain

[35] Dr. Jain was produced as the representative of the Defendant Bolton. He and his brother, a radiologist, purchased the clinic in the spring of 2008. The facility was already operating as a diagnostic imaging facility so they simply took over the operations. His brother was present at the clinic on a regular basis.

[36] Dr. Jain explained the procedure. Once an image was taken of a patient, it was sent to the radiologist for interpretation and after the report was obtained, it was sent to the referring physician.

[37] Dr. Schneider had a contract with Bolton for the interpretation of various imaging. The doctor would be paid for his work by OHIP and Dr. Schneider would remit 10 percent of his fee to the clinic. He was not an employee of Bolton.

Dr. Anne Marie Shorter

[38] Dr. Shorter is a radiologist who specializes in breast imaging and she was retained by the Defendant Bolton to provide an opinion in this litigation. She has spent the majority of her career specializing in breast imagery and she was qualified by the court to provide an expert opinion in this area.

[39] She reviewed the mammograms, ultrasounds and various reports concerning Mrs. Frank. With respect to the August 25, 2008 mammogram that was done at Bolton, Dr. Shorter felt that it met the standard of care and was diagnostic. All of the sets of images were of proper quality. The ultrasound was “incredibly thorough” with 72 images taken and a vast amount of attention to detail. The coned compression images taken in September 2008 met the standard of care. The mammogram and the ultrasound undertaken in July 2009 at Bolton were properly done and met the standard of care.

[40] She agreed that the Plaintiff has parenchyma, which means dense breast tissue, which is difficult to image. She did not feel the fact that the Plaintiff’s mother had breast cancer when she was 85 was a significant fact. When Dr. Shorter reviewed the mammogram from 2008 she did not detect any micro calcifications. Generally, her interpretation of the 2008 mammogram is the same as that of Dr. Schneider.

[41] Dr. Shorter testified that there are many different types of calcifications and the radiologist must look at them to determine their grouping, shape, and size and if there are others that are similar, because many are completely insignificant.

[42] Dr. Shorter disagreed with the opinion of Dr. Curmen that there were micro calcifications present in the 2008 mammogram; and she disagreed with her view that the Plaintiff had a strong family history of breast cancer. She noted that there were micro calcifications found in the healthy breast tissue according to the pathology report.

[43] Dr. Shorter agreed the ultrasound done at Trillium Health Centre on August 14, 2009 is inconsistent with the findings on the ultrasound done a month earlier, July 19, 2009, at Bolton. She thought it possible that the mass might have grown in the intervening period between the two ultrasounds because it was an extraordinarily aggressive tumor according to the pathology report.

[44] In response to questions about the use of a magnifying glass, Dr. Shorter stated that it is the magnification of the glass used that matters, not whether it is an actual magnifying glass or bifocals.

Dr. Schneider

[45] Dr. Schneider obtained his accreditation as a radiologist in Ontario in 1974 and commenced working at the Etobicoke General Hospital. He was chief of the department from 1983 until shortly before he left the hospital in 2005. During his time there, he started the breast clinic and he spent a couple of days a week reading mammograms so he read thousands of mammograms a year.

[46] In 2008 he went into private practice, reading x-rays, ultrasounds, mammograms, and bone density studies. While he was working at Bolton, he read imaging for approximately 80 patients per day and of those, 25 were mammograms, the vast majority of which were screening studies.

[47] Dr. Schneider had a contract with Bolton to provide radiological services. Bolton’s staff made the appointment with the patient, conducted the study and sent it to him for his review. Once he finished his review, he sent his report to the typist at Bolton who transcribed it and then sent it off to the referring physician.

[48] In the case of the Plaintiff, Dr. Schneider received the mammogram films in 2008 along with the notes of the technologist for his review. He noted that the Plaintiff had a family history of breast cancer as her mother had the disease when she was 85. This was a relatively insignificant fact, which carries a low risk of breast cancer, in Dr. Schneider’s view.

[49] He had no previous studies to compare. While he did not have a specific recollection of reviewing the mammograms, his usual practice was to put the films on the viewer in a dark room and to use his special glasses which had lenses which magnified the image twice as large. When looking at the films, he would check the density of the breast tissue and look for asymmetry. He felt the films were adequate for diagnosis.

[50] The Plaintiff had grade 3 parenchyma, which means that her breasts were dense and thus his job of looking for abnormalities was rendered more difficult. He was clear that the parenchyma did not impair his ability to read and interpret the mammogram.

[51] He was looking for masses in the breasts, calcifications and asymmetry. Dr. Schneider explained that calcifications are deposits of calcium which are routinely seen in breasts, perhaps 80 percent of women have them. A radiologist must study the calcifications to determine whether further investigations ought to be done because some are suspicious and are indicative of cancer. The number, size, shape, distribution and margins of the calcifications need to be determined and it is important to determine whether they appear in clusters or not.

[52] Dr. Schneider did not see any suspicious calcifications on the 2008 mammogram. He saw some dots that he described as non-specific and he felt they were of no clinical significance. He saw a few scattered calcifications in both breasts, not clusters and he did not believe they were suspicious. In his opinion, the calcifications did not fit the criteria for abnormal ones. He did not see a cluster of micro calcifications, as Dr. Curpen described. He detected 2 small iso-dense nodules in the right breast which he felt required some follow up so he ordered coned compression views and an ultrasound. He sent his report to Bolton.

[53] The additional imaging was done at Bolton on August 30 and September 2, 2008. Dr. Schneider reviewed the coned compression views and the ultrasound and felt the nodules were not suspicious for malignancy. He recommended a further ultrasound in 6 months, which was not undertaken by the Plaintiff. Dr. Schneider gave his evidence in a clear, straightforward manner and he struck me as a careful practitioner.

[54] Dr. Schneider ordered coned compression views of the right breast to allow for a better view because of the presence of the nodules. He also ordered an ultrasound of both breasts. He did his report and sent it off.

[55] The Plaintiff had the ultrasound done on August 30 at the Bolton Clinic. Dr. Schneider received the notes of the technologist and looked at all of the still images, one at a time. He found no suspicious findings, the nodules he had seen on the mammogram were small and non-specific. There was nothing worrisome and no suspicious calcifications. He felt that the Plaintiff required some “surveillance” so he recommended a repeat ultrasound in 6 months’ time. He prepared his report and sent it off.

Dr. Gary Hochman

[56] Dr. Hochman is a radiologist at York Central Hospital and he reviews approximately 1500-2000 mammograms annually. He was qualified as an expert by the court entitled to offer an opinion in the field of breast imaging. He was retained by the defendant physician and he authored two reports in July 2015.

[57] Dr. Hochman read the 2008 and the 2009 mammograms and ultrasounds in a blind fashion, to put himself in the same position as Dr. Schneider would have been when he looked at the imaging. This means Dr. Hochman did not read any of the reports or other documentation before reviewing the imaging studies. He used a hand held magnifying glass to read the images, which he stated is the standard of care.

[58] Dr. Hochman agreed that the fact that Mrs. Frank’s mother had breast cancer at age 85 was not significant as a risk factor. He agreed that the Plaintiff’s breasts were dense which meant it was more difficult to identify markers for cancer on the imaging.

[59] Dr. Hochman found no masses or lesions and no suspicious micro calcifications or other features of malignancy. He found a scattering of tiny micro calcifications but they were not suspicious and not in a cluster. In his opinion, the 2008 mammogram did not warrant further follow up.

[60] Dr. Hochman disagreed with Dr. Curpen’s opinion that the 2008 mammogram showed a cluster of worrisome calcifications. In his opinion, there was nothing worrisome in the mammogram. He saw a few calcifications at most and they were present in both breasts. They were scattered, not in a cluster. He disagreed that the presence of micro calcifications was indicative of cancer in 2008. He noted that it is very common to have different interpretations of mammograms by radiologists. In his opinion, Dr. Schneider’s observations of the 2008 mammogram and his report meet the standard of care. He ordered coned compression views and an ultrasound because he of the presence of nodules which he felt warranted further investigation.

[61] Dr. Hochman stated that Dr. Schneider’s report of the ultrasound in 2008 was appropriate and met the standard of care. It was very reasonable for him to order a repeat ultrasound in 6 months’ time; this was a cautious approach.

[62] Finally, Dr. Hochman agreed that the coned compression views done September 2, 2008 showed nothing worrisome. Dr. Schneider’s report of this imaging met the standard of care.

[63] Dr. Hochman also reviewed the 2009 mammograms and did not note any changes from the one done in 2008. He saw no mass lesions, no suspicious micro calcifications or other features of malignancy. He did not feel any follow up was required and Dr. Schneider’s report of the imaging meets the standard of care. Dr. Hochman read the pathology report which confirmed his belief that the micro calcifications he saw were benign.

[64] In cross examination Dr. Hochman was asked about the quality of the images for the 2008 mammogram. He agreed the images were of suboptimal quality but he said that was because the Plaintiff’s breasts were dense and consequently, the images had a lot of white in them, which makes the search for markers of cancer more difficult as they are also white. However, Dr. Hochman was clear that the images were diagnostic, meaning he was able to interpret them and come to a diagnosis and it was not necessary to have new imaging done.

[65] Dr. Hochman said he had no explanation for why the ultrasound reports done in July and August 2009 were so different.

Analysis

Negligence

[66] In this case, the Plaintiff, Catharina Frank, sues the facility where she had her breast imaging done in 2008, and she also sues the radiologist who interpreted the imaging, Dr. Schneider, in negligence. In order to be successful, the Plaintiff must establish on a balance of probabilities that Bolton was negligent in its provision of medical imaging and that Dr. Schneider fell below the standard of care of a reasonably prudent radiologist in similar circumstances.

The Claim Against Bolton

[67] The Plaintiff did not call any evidence at trial that established the standard of care for an imaging clinic; nor did the Plaintiff put forth evidence to demonstrate that Bolton was negligent in the manner in which the various images were taken or in the quality of its imaging. Four radiologists testified at trial and all of them agreed the mammograms done in 2008 were diagnostic. All of the experts testified that Catharina has grade 3 parenchyma so that makes imaging more difficult. Dr. Hochman testified that the images were “sub optimal” but he attributed that to the fact that the Plaintiff has dense breasts which makes it more of a challenge for a radiologist to identify abnormalities. However, he was absolutely clear that the images were diagnostic and there was no need to have another mammogram done. He stated that if a radiologist receives an image that is not diagnostic, the patient would be sent back for further imaging. That did not occur with the Plaintiff.

[68] The solicitor for the Plaintiff argues that the fact that the mammogram and ultrasound conducted by Trillium in August, 2009 identified abnormalities while the imaging done at Bolton a month earlier ( and a year earlier) did not is evidence of negligence in the imaging done at Bolton. Counsel argues the Bolton imaging done must have been deficient as “there is no other reasonable explanation” for the failure to disclose the abnormalities. I do not accept this argument which flies in the face of the opinion evidence from the Plaintiff’s own expert. Dr. Curpen was not critical in her evidence of the quality of the imaging in the mammograms nor did she offer any negative comment about the ultrasounds or of the technologists or their notes. Importantly, Dr. Curpen did not state that the imaging was not diagnostic or that Dr. Schneider ought to have sent Catharina back for further and better imaging.

[69] I found Dr. Shorter, the radiologist called as an expert by the Defendant Bolton, to be very impressive. She was knowledgeable in the area of breast imaging, and provided the court with an impartial opinion without advocating on behalf of the party who retained her. Dr. Shorter agreed that because the Plaintiff’s breasts were dense, the mammograms done in 2008 were difficult to read. However, she was clear in her evidence that the imaging met the standard of care: the breast was positioned correctly, 4 views were done and the technical factors were fulfilled.

[70] With respect to the 2008 ultrasound, Dr. Shorter stated that there was a vast amount of attention to detail and the test was done in a very thorough manner. Furthermore, both the ultrasound and the mammogram done July 19, 2009 at Bolton also met the standard of care, as did the ultrasound.

[71] Dr. Hochman, the expert radiologist called by the Defendant physician described the images as sub-optimal. That does not equate with negligence. As Dr. Hochman explained and all of the experts agreed, it is difficult to obtain high quality images of women with grade III parenchyma because the breast tissue appears white on the imaging, as do abnormalities in the breast. As a result, the mammogram machine automatically adjusts the radiation, which causes the images to be darker in order to create contrast.

[72] While the solicitor for the Plaintiff makes the argument that the mammograms and ultrasounds done at Bolton in 2008 and 2009 compromised Dr. Schneider’s ability to properly review the images, there is absolutely no evidence to support this contention.

[73] The Plaintiff seems to rely on the fact that cancer was diagnosed in August 2009 and since there was imaging done at Bolton in July 2009, the evidence of cancer must have been present at that time and the failure of the mammogram or ultrasound to identify abnormalities leads to a conclusion of negligence. That submission is contrary to the expert opinions and is not based on a proper interpretation of the law. Counsel for the Plaintiff submitted that Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, is authority for this argument; however, in my view, this case is of no assistance to the Plaintiff because it deals with the issue of whether a duty of care exists for a statutory regulator to the public, which is not an issue in this lawsuit.

[74] The Plaintiff makes an alternative argument: in the event Dr. Schneider is not found to be negligent, it is still open to the court to find that Bolton was negligent in the provision of its imaging because otherwise, Dr. Schneider would have identified “the presence of a possible cancer”. I reject this argument as it amounts to res ipsa loquitur, which has not been the law since the Supreme Court of Canada dealt with it in Fontaine v. British Columbia, 1998 CanLII 814 (SCC), [1998] 1 S.C.R. 424. The case before me is not one in which circumstantial evidence raises an inference of negligence which demands an answer from the Defendant. All of the expert radiologists were asked about the quality of the imaging and why a lesion identified in August 2009 was not disclosed on the imaging in July 2009. Not one of the experts testified that the fact that the ultrasound and mammogram done at Bolton in July 2009 failed to identify the presence of a mass constitutes negligence. This argument has no merit.

[75] There was some suggestion from the solicitor for the Plaintiff during the course of the trial that Bolton should be found vicariously liable for any negligence of Dr. Schneider, although this was not pursued in written submissions. It is clear that the relationship between Bolton and Dr. Schneider was not one that could give rise to vicarious liability on the part of Bolton.

[76] In conclusion, there is simply no evidence upon which a finding of negligence can be made against Bolton and the claims must be dismissed against this Defendant.

The Claim against Dr. Schneider

[77] It is important to note that radiologists, in interpreting imaging, exercise their clinical judgment, bringing to bear their own experience and consequently, there may be disagreement between doctors on the interpretation of various imaging. That does not mean that one of the radiologists is negligent: it simply means that there is a difference of opinion between them. At trial, the experts explained that the concept of inter-observer variability is well known and is often experienced. Reading an x-ray is not an exact science; different radiologists looking at the same image will see different things.

[78] Inter-observer variability was demonstrated at this trial: there was some disparity between the experts as to the interpretation of the 2008 mammogram. Dr. Shorter found no micro calcifications; she saw some calcifications as Dr Schneider did, but none that were suspicious. Dr. Hochman observed tiny scattered micro calcifications which he felt were benign; none of them were clustered and in his opinion, none of them fulfilled the criteria for suspicious calcifications. Dr. Schneider saw scattered calcifications which were not suspicious. He also noted 2 nodules which he felt warranted further imaging. Dr. Curpen was the only radiologist who identified micro calcifications that were in a small cluster in the right breast of the Plaintiff. She was of the view they were suspicious and that further investigations were necessary.

[79] All of the experts agreed that calcifications are common, present in approximately 80 percent of women. The radiologist must look at them, the number, size, shape, distribution, their margins and whether or not they appear in clusters and decide if further investigation is warranted. That is an exercise of clinical judgment and in my view, is exactly what Dr. Schneider ought to have done and what he did do.

[80] It is perhaps not surprising that there is a difference of opinion concerning the 2008 mammograms because of inter-observer variability; interpreting imaging is both an art and a science and the fact that not all of the experts agree on the findings in the 2008 mammograms does not mean that one of them is wrong.

[81] I did not find Dr. Curpen to be an advocate on behalf of the Plaintiff although she was somewhat defensive in her evidence and while doing her analysis, she did not place herself in the same shoes as Dr. Schneider when he was reviewing the imaging. She acknowledged that she knew the Plaintiff had gone on to be diagnosed with breast cancer and thus when coming to her opinion, she was in a different position than Dr. Schneider was when he looked at the mammogram. It is contrary to the law and unfair to the Defendant physician to review the evidence in this fashion: see Bafaro v. Dowd.

[82] I found the evidence of Dr. Shorter to be measured and informative without any hint of advocacy for any party. Similarly, Dr. Hochman’s testimony was straight forward, well informed and without partisanship.

[83] I prefer the evidence of Dr. Shorter and Dr. Hochman both of whom looked only at the imaging and the technologist’s notes when arriving at their respective opinions. In my view, that is the proper, fair way of evaluating the conduct of Dr. Schneider.

[84] It is not necessary for Dr. Schneider’s conclusions to be correct, that is not the standard of care. What is necessary is that he undertook a reasonable and appropriate exercise of clinical judgment while reviewing the mammograms and other imaging and there is no doubt on the evidence that he did so.

[85] Even if I were to accept Dr. Curpen’s opinion that there were micro calcifications present on the 2008 mammogram which Dr. Schneider failed to identify, there was no evidence about what the standard of care required of Dr. Schneider in those circumstances. He ordered an ultrasound and coned compression studies and nothing was disclosed of any significance. More importantly, there was a total absence of evidence linking the micro calcifications that Dr. Curpen identified with the tumor that was later diagnosed. The pathologist’s report (JBD Tab 20) found micro calcifications in the benign breast tissue although none are identified in the tumor that was removed during the mastectomy.

[86] Turning to the 2009 imaging, Dr. Schneider reviewed the 2009 mammogram and ultrasound that were ordered by her family doctor. He found nothing of concern. A month later, Dr. Rizk sent the Plaintiff for an ultrasound of her breast as she detected a lump. The ultrasound was done at Trillium and identified a malignant mass which led to the mastectomy.

[87] The argument of the Plaintiff seems to be that because the Plaintiff was found to have a malignant tumor in her right breast, it must have been present in July 2009 and signs of the cancer must have been present in the form of micro calcifications in July 2008 when Dr. Schneider first reviewed her mammogram and since he failed to detect anything suspicious, he was negligent. There is no merit to this argument and this is patently clear from the evidence of the experts. None of the experts testified that Catharina had breast cancer when she underwent the 2008 mammogram; nor was there expert evidence that she had abnormal findings that were indicative of cancer.

[88] At its strongest, the evidence from Dr. Curpen is simply that she noted the presence of micro calcifications in the right breast of the Plaintiff on the 2008 mammogram. She said they “could” be early signs of cancer but acknowledged that they were indeterminate at that time, meaning simply that, in her opinion, further investigations needed to be done. Dr. Curpen did not state that the micro calcifications that she identified on the mammogram were indicative of the presence of early stage cancer.

[89] It is not the job of the court to determine why the presence of the lump in the Plaintiff’s breast was not found earlier than August 2009. Indeed, that question was asked of the experts in cross examination and there was no easy answer forthcoming. Dr. Shorter agreed that the findings on the August 14, 2009 ultrasound done at Trillium were inconsistent with the July 19, 2009 mammogram and ultrasound report done at Bolton. Dr. Shorter candidly admitted that while she did not know for certain, the tumor that was eventually diagnosed was an “extraordinarily aggressive” tumor and it was possible it could have grown in a month’s time. Dr. Schneider said it was “possible” the tumor had been growing for a year or more without significant findings on imaging. When asked, Dr. Hochman had no explanation for why the July and August 2009 reports on the ultrasounds were so different. He indicated that a lump might be palpable but not visible on imaging.

[90] The court cannot and must not evaluate the actions of a defendant physician using an outcome based analysis, regardless of how superficially appealing that may be. As the court noted in Bafaro v. Dowd, supra, “A plaintiff’s case which applies an outcome-based retrospective approach and attempts to work backwards from the result of surgery in order to prove negligence is fundamentally flawed in law and contrary to admonitions in the case law.”

[91] The comments of the Supreme Court of Canada in Lapointe, at p. 362 are instructive:

Courts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a courts of conduct must be kept in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.

[92] Dr. Curpen acknowledged that when she reviewed the breast imaging, she knew the Plaintiff had been diagnosed with breast cancer and had undergone a mastectomy. Although she attempted to say that knowledge did not inform her opinion, I do not accept her evidence on this point. Knowing a patient’s ultimate outcome is a very important piece of information in the hands of a radiologist who is interpreting imaging looking for signs of anything suspicious. In cross examination, Dr. Curpen conceded that when Dr. Schneider was reviewing the breast imaging, he did not have the benefit of other radiologists’ opinions nor did he know that eventually Catharina was diagnosed with breast cancer, as Dr. Curpen did when she arrived at her opinion. She also acknowledged that having such information made a difference to the analysis.

[93] The comments of the court in Geddes v. Bloom, [2008] O.J. No. 3458 (S.C.), at para. 24, are directly on point to the facts of this case:

The radiologists also acknowledged the difference in reading films prospectively and reading them retrospectively. There is a subjective component which enables the radiologist reading retrospectively to be aware of information that allows correct interpretations to be easier than a radiologist reading the same film prospectively. The advantages of reading films retrospectively are that the radiologist knows there is pathology and where it is, which assists in knowing where to look to enable interpretation.

[94] The job of a radiologist, as the experts agreed, is both art and science. It involves the exercise of judgment. The evidence can lead to no other conclusion than that Dr. Schneider undertook an “honest and intelligent exercise of judgment” reasonable and appropriate analysis of the imaging and arrived at conclusions that were reasonable in the circumstances: see Wilson at p.812.

[95] To use a colloquial phrase, Dr. Schneider was “in the trenches” doing his job interpreting breast imaging for a patient with very limited information. He knew the mammogram was for screening purposes and he did not have any other imaging for comparison. His interpretation of the various imaging was careful and appropriate; he arranged for further investigations, which he reviewed and found reassuring. I find Dr. Schneider’s review of the imaging was in accordance with the standard of care of a prudent radiologist in similar circumstances. That finding is sufficient to dispose of the claims against Dr Schneider.

Conclusion

[96] The Plaintiff has failed to prove negligence against either Defendant and consequently, the case must be dismissed.

[97] If the parties cannot agree on costs, I may be contacted.

D.A. Wilson J.

Released: November 20, 2017